There
are two motions pending before the Court in this employment
discrimination and tort suit filed by Plaintiff Samuel
Calhoun, who is proceeding pro se. One is a motion
to dismiss [Doc. # 29] filed by Defendants employed by H.E.
Butt Grocery Company (“HEB”), specifically, Scott
McClelland, Chris Boehn, Barnard Douglas, and Bridgett Mervin
(the “HEB Defendants”). Defendants FirstFleet,
Inc. (“FirstFleet”), Brandon Holloway, and Diane
Hill (collectively, the “FirstFleet Defendants) also
have filed a motion to dismiss [Doc. # 17]. Both motions
address Plaintiff's original and first amended
complaints. The Court heard oral argument from the parties on
August 22, and incorporates Plaintiff Calhoun's comments
into the motion record. For reasons set forth below, the
Court grants the HEB Defendants' motion
and dismisses all of Plaintiff's claims against the HEB
Defendants. The Court grants in part and
denies in part the FirstFleet
Defendants' motion. Accordingly, the Court must dismiss
all Plaintiff's claims against Holloway and Hill, and all
of Plaintiff's claims against Defendant FirstFleet
except his claim under Title VII of the Civil Rights
Act of 1964 as amended, which remains pending.

Plaintiff
filed a Response to the Motions to Dismiss, requesting leave
to amend and offering an amended complaint. See
“Plaintiff's Response to Defendants['] Motion
to Dismiss, Plaintiff[']s Amended Complaint”
(“Response”) [Doc. # 27]. The Court construes
Plaintiff's Response as a motion for leave to amend and
grants that motion. Plaintiff's proposed
Amended Complaint has been docketed as a separate entry on
the Court's docket. See Amended Complaint [Doc.
# 33].[2]

The
FirstFleet Defendants have replied to Plaintiff's
Response (“Reply”) [Doc. # 28]. These Defendants
argue that Plaintiff's Amended Complaint again fails to
allege legally viable claims against the FirstFleet
Defendants. Additionally, the FirstFleet Defendants argue
that Plaintiff now admits his claim under Title VII of the
Civil Rights Act of 1964, as amended (“Title
VII”) is untimely because Plaintiff's suit was
filed on April 21, 2017, ninety-three days after the date of
the Equal Employment Opportunity Commission
(“EEOC”) Notice of Right to Sue that Plaintiff
received, which Plaintiff attached to his Amended Complaint.
See Id. at 1-2; Notice of Right to Sue, Exh. A to
Amended Complaint (“Notice of Right to Sue”)
[Doc. # 33], at ECF 14.

Because
the written record contained no explanation from Plaintiff
why he did not initiate this lawsuit within ninety days of
receiving the Notice of Right to Sue, as required under Title
VII, see 42 U.S.C. § 2000e-5(f)(1), the Court
gave Plaintiff Calhoun an opportunity to provide such an
explanation orally at the August 22 Initial Pretrial
Conference in this case. At the Initial Pretrial Conference,
Plaintiff stated, under oath, that he did not actually
receive the EEOC Notice of Right to Sue until several days
after the EEOC issued it on January 18, 2017. Based on
Plaintiff's sworn representation regarding the timing of
his receipt of the EEOC Notice of Right to Sue, the Court
ruled that Plaintiff had timely filed his Title VII claims
against the HEB and FirstFleet Defendants. See
Hearing Minutes and Order dated August 22, 2017 [Doc. #
34].[3]

For
reasons explained below in Section IV, the Court concludes
that the HEB Defendants' Motion [Doc. # 29] should be
granted in its entirety because Plaintiff's Amended
Complaint fails to cure the defects identified by those
Defendants, see Motions to Dismiss [Docs. # 23, #
29], and because further amendment would be futile with
respect to Plaintiff's claims against the HEB
Defendants.[4] Accordingly, Plaintiff's claims
against the HEB Defendants will be dismissed with
prejudice.

For
similar reasons also explained below in Section IV, the Court
concludes that the FirstFleet Defendants' Motion [Doc. #
17] should be granted in part and denied in part.
Accordingly, Plaintiff's claims against the FirstFleet
Defendants, other than Plaintiff's claim under
Title VII against Defendant FirstFleet, will be
dismissed with prejudice.

II.
FACTUAL BACKGROUND

Plaintiff,
who is black, was employed by FirstFleet as a truck driver.
Amended Complaint [Doc. # 33], at ECF 1; FirstFleet's
Motion to Dismiss Original Complaint [Doc. # 17], at 1.
Plaintiff alleges that on March 9, 2016, while on duty, he
was involved in an altercation with HEB employee Chris Boehn
in an HEB-owned yard. See Amended Complaint [Doc. #
33], at ECF 1-2. FirstFleet, Inc. investigated the incident
and terminated Plaintiff shortly thereafter. See
Amended Complaint [Doc. # 33], at ECF 2-3. According to
Plaintiff, the investigation was conducted unfairly and
tainted by the actions and racial animus of both the
FirstFleet and HEB Defendants. See Amended Complaint
[Doc. # 33], at ECF 2-4, 6-8. Plaintiff alleges he was
wrongly terminated and denied “Texas Workforce
benefits.” See Id. at ECF 8. Plaintiff filed
an administrative complaint with the EEOC on January 5, 2017,
and the EEOC issued a Notice of Right to Sue on January 18,
2017. See Notice of Right to Sue and Charge of
Discrimination [Doc. # 33], at ECF 14-15.[5]

Construed
liberally, Plaintiff alleges that he was discriminated
against based on his race, in violation of Title VII. See
generally Amended Complaint [Doc. # 32]. Plaintiff also
claims that the FirstFleet Defendants and the HEB Defendants
violated 42 U.S.C. § 1983 (“§ 1983”) by
depriving him of his constitutional rights and that
Defendants FirstFleet and McClellan failed to adequately
train and supervise their employees. See Id. at ECF
3, 5-6, 7, 10. Defendants' motions to dismiss followed.

III.
LEGAL STANDARDS

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure is viewed with disfavor and is rarely
granted. Turner v. Pleasant, 663 F.3d 770, 775 (5th
Cir. 2011) (citing Harrington v. State Farm Fire &
Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)). The
complaint must be liberally construed in favor of the
plaintiff, and all facts pleaded in the complaint must be
taken as true. Harrington, 563 F.3d at 147. The
complaint must, however, contain sufficient factual
allegations, as opposed to legal conclusions, to state a
claim for relief that is &ldquo;plausible on its face.&rdquo;
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Patrick v. Wal-Mart, Inc., 681 F.3d 614, 617 (5th
Cir. 2012). When there are well-pleaded factual allegations,
a court should presume they are true, even if doubtful, and
then determine whether they plausibly give rise to an
entitlement to relief. Iqbal, 556 U.S. at 679.
Additionally, regardless of how ...

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